Wednesday, June 08, 2005

Weekly Darfur Post: The ICC

The big news regarding Darfur this week is that the International Criminal Court has formally announced that it is conducting an investigation into allegations of crimes against humanity in the region.

This investigation is a welcome, if belated step, but one that is also unlikely to have much of an immediate impact on the violence, disease and starvation that plagues the region.

The investigation is the result of a UN commission of inquiry that began in September 2004. Established under UN Resolution 1564, the commission took three months to investigate "violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred." In the report it issued in January 2005, the commission declared that genocide was not taking place, but that "serious violations of international human rights and humanitarian law amounting to crimes under international law" had indeed occurred. The report went on to recommend that the UN Security Council refer the situation to the ICC for possible prosecution.

In April, the Security Council did just that and turned over evidence gathered by the commission, including the names of 51 people suspected of punishable crimes. And now, two months later, the ICC has finally begun an investigation.

It has taken nine months from the time the Security Council authorized the commission to investigate the crimes in Darfur to reach the point where the ICC has finally launched an official investigation.

The ICC has only been in existence for three years and has yet to indict or hold a trial for anyone connected with either of its two other cases, despite the fact that the ICC began its probe of Uganda in January 2004 and the Congo in April of the same year.

Furthermore, the ICC statute itself contains a provision (Article 17) regarding "complementarity" that grants states the priority to try their own citizens for crimes that fall within the ICC's jurisdiction. The ICC thus has no jurisdiction over these cases unless it can be determined that "the State is unwilling or unable genuinely to carry out the investigation or prosecution." And making that determination is going to take time.

Considering that Khartoum has already begun to look at ways to exploit this provision and is openly rejecting calls to cooperate with the ICC, it is likely that, as Nat Hentoff noted, "It will be at least a year, maybe two, before the ICC even issues its first indictments."

COMMENT:

I have never been an advocate of the ICC. In fact I have alway believed that ad hoc court such as the one in the former Yugoslavia or Rwanda is the prefered route. According to Coalition for Darfur's estimate, it will year, maybe two before any indictment. I am even more pessimistic than that. I believe base previous procedure on Rwanda and Yugoslavia, it will take even longer. And the problem does not end there. Who will enforce the indictment?

I am willing to give the ICC a chance on Darfur, but placing all bet on the ICC to stem the tide of rapes and murders in Darfur is wishful thinking and naive. We need forceful military intervention.